B-214160, NOV 13, 1984, 84-2 CPD 519

B-214160, NOV 13, 1984, 84-2 CPD 519

CONTRACTS - NEGOTIATIONS - OFFERS OR PROPOSALS - DISCUSSION WITH ALL OFFERORS REQUIREMENT - EXCEPTIONS - NO REASONABLE CHANCE FOR AWARD DIGEST: PROTEST THAT PROPOSAL WAS ARBITRARILY REJECTED WITHOUT CONDUCTING DISCUSSIONS IS DENIED BECAUSE RECORD ESTABLISHES THAT AGENCY HAD REASONABLE BASIS FOR CONCLUDING THAT PROTESTER HAD NO REALISTIC CHANCE OF RECEIVING AWARD.

TODD PACIFIC SHIPYARDS CORPORATION:

TODD PACIFIC SHIPYARDS CORPORATION, LOS ANGELES DIVISION (TPLA), PROTESTS THE AIR FORCE'S DECISION TO EXCLUDE FROM THE COMPETITIVE RANGE FOLLOWING EVALUATION OF INITIAL PROPOSALS IN RESPONSE TO REQUEST FOR PROPOSALS (RFP) F04704-83-R-0034. THE RFP IS FOR CONCEPT DEFINITION AND SCALE MODEL TESTING OF A HARD MOBILE LAUNCHER (HML), AN ALTERNATIVE BASING SYSTEM FOR THE SMALL INTERCONTINENTAL BALLISTIC MISSILE (SICBM). THE HML WOULD BE A TRUCK-LIKE VEHICLE CAPABLE OF CARRYING AND LAUNCHING A SINGLE SICBM FROM EXISTING ROADWAYS WITHIN THE UNITED STATES. THE VEHICLE IS TO BE "HARDENED" TO MAKE IT CAPABLE OF SURVIVING A NEARBY NUCLEAR EXPLOSION; LAUNCH OF THE MISSILE WOULD BE REMOTELY CONTROLLED.

WE DENY THE PROTEST.

ACCORDING TO TPLA, THE PROCURING AGENCY'S REJECTION OF ITS PROPOSAL WAS ERRONEOUS BECAUSE THE TPLA DESIGN CONCEPT WILL PROVE TO BE THE MOST TECHNICALLY ADVANTAGEOUS AS WELL AS THE MOST COST EFFECTIVE OF ANY DESIGN CONSIDERED BY THE AIR FORCE. IN TPLA'S VIEW, ITS HML DESIGN HAD THE HIGHEST, OR ONE OF THE HIGHEST, DEGREES OF NUCLEAR HARDNESS POSSIBLE, AS WELL AS GREAT MOBILITY. TPLA FURTHER CONTENDS THAT THE DESIGN, BY COMBINING A TRADITIONAL WHEELED VEHICLE WITH AIR CUSHION TECHNOLOGY, RESULTS IN A VEHICLE THAT CAN BE OPERATED VIRTUALLY ANYWHERE WITHOUT CONCERN FOR TERRAIN LIMITATIONS. TPLA ASSERTS THAT IT OVERCAME NORMALLY CONFLICTING DESIGN OBJECTIVES OF NUCLEAR HARDNESS AND HIGH MOBILITY THROUGH WHAT IT CHARACTERIZES AS EXCEPTIONAL ENGINEERING AND SCIENTIFIC SKILL.

TPLA ARGUES THAT IT THEREFORE SHOULD HAVE BEEN GIVEN AN OPPORTUNITY TO PARTICIPATE IN NEGOTIATIONS SO IT COULD EXPLAIN ITS PROPOSAL IN DETAIL. THE PROTESTER CHARGES THAT THE AIR FORCE'S REVIEW OF ITS PROPOSAL WAS SUPERFICIAL AND SUGGESTS THAT THIS WAS THE RESULT OF A 90 PAGE LIMITATION IMPOSED BY THE RFP ON THE LENGTH OF TECHNICAL PROPOSALS, AND BY THE AIR FORCE'S DECISION TO LIMIT THE PERIOD OF INITIAL REVIEW OF PROPOSALS TO A FEW WEEKS, WHICH TPLA CONTENDS DID NOT ALLOW SUFFICIENT TIME TO PERMIT EACH MEMBER OF THE SOURCE SELECTION EVALUATION BOARD TO REVIEW THE PROPOSALS ADEQUATELY.

INITIALLY, WE POINT OUT THAT TO THE EXTENT TPLA OBJECTS TO THE RFP PAGE LIMITATION, ITS PROTEST IS UNTIMELY. THE PAGE LIMITATION WAS APPARENT ON THE FACE OF THE RFP, AND SECTION 21.2(B)(1) OF OUR BID PROCEDURES REQUIRES THAT PROTESTS AGAINST APPARENT SOLICITATION DEFECTS BE FILED PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS. 4 C.F.R. SEC. 21.2(B)(1) (1984).

WE ALSO POINT OUT THAT TPLA WAS NOT TREATED UNEQUALLY. WHILE TPLA EVIDENTLY HAD DIFFICULTY EXPLAINING ITS TECHNICAL PROPOSAL WITH THE 90 PAGES ALLOWED BY THE RFP, THAT LIMITATION APPLIED TO THE OTHER OFFERORS ALSO. IN THIS RESPECT, TPLA HAS SUBMITTED A SUBSTANTIAL VOLUME OF MATERIAL IN SUPPORT OF ITS PROTEST, ALTHOUGH ACCORDING TO THE AIR FORCE, THIS MATERIAL DOES NOT ALTER ITS OPINION OF TPLA'S DESIGN. WE NOTE, HOWEVER, THAT THIS MATERIAL SHOULD NOT BE EXPANDING OR EXPLAINING TPLA'S PROPOSAL. THE AIR FORCE'S REJECTION OF THE PROPOSAL MUST BE JUDGED ON THE BASIS OF THE MATERIALS THE AGENCY COULD PROPERLY CONSIDER AT THE TIME IT MADE ITS DECISION. AS STATED, TPLA ACCEPTED THE 90-PAGE LIMITATION AND SUBMITTED ITS PROPOSAL WITHOUT PROTESTING. BY DOING SO, TPLA ASSUMED THE RESPONSIBILITY, LONG RECOGNIZED BY OUR OFFICE, TO ESTABLISH, WITHIN 90 PAGES, THE SUITABILITY AND DESIRABILITY OF THE DESIGN IN ITS PROPOSAL. ONLY BY SO DEMONSTRATING THE MERIT OF ITS PROPOSAL WOULD TPLA HAVE BEEN ENTITLED TO A FURTHER OPPORTUNITY TO EXPAND OR CORRECT ITS PROPOSAL THROUGH DISCUSSIONS. GENERAL TECHNOLOGY APPLICATIONS, INC., B-204635, MAR. 22, 1982, 82-1 CPD PARA. 266

THE AIR FORCE BELIEVES THAT THE EVALUATION WAS ADEQUATE. IT POINTS OUT THAT A TEAM OF 20 PERSONS, WORKING NIGHTS AND WEEKENDS, DEVOTED APPROXIMATELY 1600 MANHOURS TO THE INITIAL REVIEW OF PROPOSALS. THE AIR FORCE INDICATES THAT LESS TIME WAS SPENT REVIEWING THOSE PROPOSALS THAT WERE CLEARLY SUPERIOR THAN WAS SPENT EVALUATING QUESTIONABLE PROPOSALS WITH THE RESULT THAT, IT ESTIMATES, SEVERAL HUNDRED HOURS WERE SPENT REVIEWING TPLA'S PROPOSAL. THE AIR FORCE STATE THAT IN ITS OPINION SHORT BUT INTENSIVE REVIEWS ARE SUPERIOR BECAUSE LENGTHENING THE PERIOD OF REVIEW INCREASES COST TO BOTH THE GOVERNMENT AND POTENTIAL CONTRACTORS WITHOUT NECESSARILY IMPROVING THE QUALITY OF THE EVALUATION.

WHETHER OR NOT THE AIR FORCE IS CORRECT IN THIS REGARD, THE FACT IS THAT OUR OFFICE WILL DENY A PROTEST AGAINST THE MANNER IN WHICH AN EVALUATION IS CONDUCTED, INCLUDING AN ALLEGATION THAT AN EVALUATION BOARD WAS IMPROPERLY STAFFED OR WAS BIASED, UNLESS THE PROTESTER SHOWS THAT THERE WAS NO REASONABLE BASIS FOR THE AGENCY'S ACTION WHICH ADVERSELY AFFECTED THE PROTESTER. ENSIGN-BICKFORD CO., B-211790, APR. 18, 1984, 84-1 CPD PARA. 439; ART SERVICES AND PUBLICATIONS, INC., B-206523, JUNE 16, 1982, 82-1 CPD PARA. 595.

WE ALSO OBSERVE THAT WHILE AGENCIES GENERALLY HAVE A DUTY TO INCLUDE FIRMS IN THE COMPETITIVE RANGE, FIRMS MAY BE EXCLUDED WHERE THEIR PROPOSALS ARE FOUND TO BE SO TECHNICALLY INFERIOR OR OUT OF LINE AS TO PRICE THAT DISCUSSIONS WOULD BE MEANINGLESS. EASTERN MARINE, INC., B-213945, MAR. 23, 1984, 84-1 CPD PARA. 343. MOREOVER, THE EVALUATION OF THE TECHNICAL MERIT OF PROPOSALS AND THE DETERMINATION OF A COMPETITIVE RANGE BASED ON SUCH AN EVALUATION ARE PRIMARILY MATTER OF JUDGEMENT THAT WE WILL NOT DISTURB UNLESS IT IS SHOWN THAT THE CONTRACTING ACTIVITY HAS ACTED ARBITRARILY OR HAS VIOLATED PROCUREMENT LAWS AND REGULATIONS. LEO KANNER ASSOCIATES, B-213520, MAR. 13, 1984, 84-1 CPD PARA. 299.

THE RFP STATED THAT CONTRACTS WOULD BE AWARDED TO THOSE FIRMS THAT THE GOVERNMENT DETERMINED COULD BEST ACCOMPLISH THE WORK NECESSARY TO SATISFY THE HML PROGRAM OBJECTIVES AND REQUIREMENTS SET OUT IN THE RFP. THIS WAS TO BE DETERMINED PRINCIPALLY BASED ON AN EVALUATION OF TECHNICAL AND MANAGEMENT FACTORS. THESE, IN TURN, WERE TO BE EVALUATED BY GIVING EQUAL WEIGHT TO SOUNDNESS OF APPROACH AND PAST PERFORMANCE.

THE AIR FORCE'S CRITICISMS OF TPLA'S PROPOSAL, ENUMERATED BELOW, PRIMARILY CONCERN SOUNDNESS OF APPROACH, WHICH THE RFP INDICATED WOULD INVOLVE AN ITEM-BY-ITEM ASSESSMENT OF EACH OFFEROR'S PROPOSAL AGAINST SPECIFIC RFP PROPOSAL REQUIREMENTS. THE RFP LISTS MORE THAN 50 SUCH ITEMS THAT OFFERORS WERE TO ADDRESS IN THEIR TECHNICAL PROPOSALS UNDER THE MAJOR HEADINGS NUCLEAR HARDNESS/SURVIVABILITY, MOBILITY, AND LAUNCH CONCEPTS; TEST AND ANALYSIS TECHNIQUES; OPERATIONAL AND SUPPORT CONCEPTS; PROGRAM PLAN; AND MANAGEMENT PLAN. TO DEMONSTRATE SOUNDNESS OF APPROACH, THE OFFEROR'S PROPOSAL HAD TO:

"(1) PROVIDE A COMPLETE RESPONSE TO EACH REQUIREMENT OF THE RFP.

"(2) CLEARLY STATE AND JUSTIFY ANY EXCEPTIONS AND/OR VARIATIONS TO THE REQUIREMENTS.

"(3) EXHIBIT A CLEAR UNDERSTANDING OF THE PROCESSES REQUIRED TO SATISFY THE STATEMENT OF WORK REQUIREMENTS.

"(4) SUBSTANTIATE POSSESSION OF THE NECESSARY EXPERTISE TO ACCOMPLISH THE PROPOSED EFFORT.

"(5) PROPOSE ADEQUATE RESOURCES TO ACCOMPLISH THE PROPOSED EFFORT." FURTHER, THE RFP WARNED THE OFFERORS THAT THE EVALUATION OF SOUNDNESS OF APPROACH WOULD BE REDUCED IF THE OFFEROR ONLY INDICATED COMPLIANCE WITHOUT STATING HOW HE WOULD COMPLY, DISREGARDED REQUIREMENTS, OR EXCEEDED REQUIREMENTS WITHOUT SUFFICIENT EXPLANATION AND JUSTIFICATION.

ACCORDING TO THE AIR FORCE, TPLA'S PROPOSAL SUFFERED FROM A NUMBER OF SERIOUS SHORTCOMINGS. THE AGENCY HAS IDENTIFIED 12 SPECIFIC AREAS OF MAJOR WEAKNESS:

1. TPLA'S UNDERSTANDING OF HARDNESS ISSUES WAS QUESTIONABLE; ITS CLAIM OF A HARDNESS OF 86 POUNDS PER SQUARE INCH (PSI) WAS NOT SUBSTANTIATED IN ITS PROPOSAL.

2. TPLA'S PROPOSAL DEMONSTRATED POOR UNDERSTANDING OF NUCLEAR DESIGN SAFETY REQUIREMENTS.

3. TPLA'S PROPOSAL SHOWED POOR UNDERSTANDING OF SYSTEM SAFETY ANALYSIS TECHNIQUES.

4. TPLA'S PROPOSED TEST CONCEPTS EVIDENCED A LACK OF UNDERSTANDING OF BASIC AERODYNAMICS, AND MINIMAL UNDERSTANDING OF LOADS, NON-IDEAL EFFECTS, TEST PLANNING, TEST OBJECTIVES, AND TEST FACILITIES.

5. THE PROPOSAL DEMONSTRATED A LACK OF UNDERSTANDING OF KEY OPERATIONAL PROBLEMS SUCH AS THOSE RELATED TO MANNING REQUIREMENTS, CREW SUPPORT, PHYSICAL SECURITY, AND COMMAND, CONTROL AND COMMUNICATIONS CONCERNS.

6. TPLA SHOWED POOR UNDERSTANDING OF FACTORS AFFECTING SUPPORT COSTS.

7. THE PROPOSED VEHICLE WAS POORLY DESIGNED FOR LOADING AND LAUNCHING THE MISSILE.

8. TPLA PROPOSED A GREATLY OVERSIMPLIFIED MAINTENANCE PLAN DEMONSTRATING A LACK OF UNDERSTANDING OF THE COMPLEXITIES AND IMPORTANCE OF MAINTENANCE.

9. THE PROPOSAL FAILED TO SHOW ANY UNDERSTANDING OF POTENTIAL MAINTENANCE CONDITIONS THAT MIGHT EXIST FOLLOWING A NUCLEAR ATTACK.

10. TPLA DEMONSTRATED NO UNDERSTANDING OF PROBLEMS THAT WOULD BE ASSOCIATED WITH AIR CUSHIONED VEHICLE OPERATIONS.

11. THE TPLA WOULD HAVE POOR OFF-ROAD MOBILITY DUE TO LOW SKIRT CLEARANCE.

12. THE TPLA PROPOSAL PRESENTED A HIGH TECHNICAL RISK IN THAT ITS APPROACH TO HARDENING OF THE VEHICLE REQUIRED AN AUXILIARY POWER UNIT AND/OR ITS MAIN GAS TURBINES BE OPERATED CONTINUOUSLY.

TPLA HAS FILED EXTENSIVE COMMENTS EXPRESSING ITS VIGOROUS DISAGREEMENT WITH MANY OF THE AIR FORCE'S FINDINGS. OUR EXAMINATION OF THE COMMENTS AND THE PROTESTER'S PROPOSAL, HOWEVER, INDICATES THAT TPLA SUBMITTED, IN THE PROPOSAL, A WELL-WRITTEN GENERAL DESCRIPTION OF ITS PROPOSED VEHICLE BUT ONLY SUPERFICIALLY ADDRESSED MANY OF THE POINTS ENUMERATED IN THE RFP. AS A RESULT, THE RECORD INDICATES THAT THERE WAS A SUBSTANTIAL BASIS FOR THE AIR FORCE'S CONCLUSIONS QUESTIONING TPLA'S UNDERSTANDING OF THE TECHNICAL ISSUES TO BE ADDRESSED IN DESIGNING AN HML.

FOR EXAMPLE, THE AIR FORCE, AS INDICATED, HAD SERIOUS RESERVATIONS CONCERNING TPLA'S UNDERSTANDING OF THE NUCLEAR HARDNESS ISSUE. TPLA'S PROPOSAL FAILED TO DISCUSS NUCLEAR EFFECTS EXCEPT UNDER "IDEALIZED" CONDITIONS (CONDITIONS THAT ARE MATHEMATICALLY OR EMPIRICALLY EASY TO ANALYZE) NOTWITHSTANDING THAT LESS THAN "IDEAL" CONDITIONS WERE SPECIFIED IN THE RFP AND THE CHARACTERISTICS OF TPLA'S DESIGN WOULD BE AFFECTED BY SUCH CONDITIONS. IN THIS IMPORTANT RESPECT, TPLA FAILED TO SUBSTANTIATE ITS CLAIM THAT ITS DESIGN HARDNESS, FOR PURPOSES OF NEARBY NUCLEAR EXPLOSIONS, EXCEEDS THE CURRENT STATE-OF-THE-ART FOR A VEHICLE OF THE WEIGHT PROPOSED. THE RECORD, MOREOVER, SUBSTANTIATES THE AIR FORCE'S CONTENTION THAT TPLA PROPOSED TEST PROCEDURES WITH RESPECT TO THIS REQUIREMENT THAT, TO THE EXTENT THEY WERE EXPLAINED, WERE SIMPLISTIC.

CONCERNING NUCLEAR DESIGN SAFETY AND SAFETY ANALYSIS ISSUES GENERALLY, TPLA ADMITS IT DID NOT INCLUDED A HAZARD ANALYSIS OF THE TYPE THE AIR FORCE WAS SEEKING. OUR REVIEW OF THE RECORD SUBSTANTIATES THE AIR FORCE CONCLUSION THAT TPLA DID LITTLE MORE IN ITS PROPOSAL THAN TO REPEAT MIL- STD-1574A AND DEPARTMENT OF DEFENSE NUCLEAR SAFETY STANDARDS.

THE AIR FORCE'S CONCERNS REGARDING TPLA'S UNDERSTANDING OF MANNING, SUPPORT, AND OTHER REQUIREMENTS SUCH AS MAINTENANCE ARE ALSO SUBSTANTIATED. FOR EXAMPLE, TPLA PROPOSED A MAINTENANCE PLAN THAT THE AIR FORCE FOUND TO BE OVERSIMPLIFIED AND LACKING IN THE UNDERSTANDING OF MAINTENANCE CONDITIONS THAT WOULD EXIST FOLLOWING A NUCLEAR ATTACK. WHILE, AS THE AIR FORCE POINTS OUT, THE HML IS A COMPLEX PIECE OF EQUIPMENT WITH NOVEL DESIGN REQUIREMENTS, TPLA'S PROPOSAL, AND INDEED ITS SUBMISSION TO OUR OFFICE, ADDRESS MAINTENANCE ONLY IN VERY GENERAL TERMS.

IN FURTHER REGARD TO MAINTENANCE, WE NOTE THAT TPLA'S PROPOSAL INDICATES IT BELIEVED THAT POST-ATTACK MAINTENANCE IS NOT FEASIBLE, DUE TO INDUCED RADIATION IN THE GROUND SURFACE AND EXTERIOR OF THE HML. IN ITS PROTEST, TPLA ARGUES THAT POST-ATTACK MAINTENANCE IS NOT REQUIRED, PROVIDED THE HML CAN SURVIVE 2 WEEKS WITHOUT MAINTENANCE. THE RFP INDICATES, HOWEVER, THAT SURVIVAL FOR 2 WEEKS AFTER ATTACK IS ONLY A MINIMUM REQUIREMENT AND THE ABILITY OF VEHICLES SUFFERING LITTLE OR NO DAMAGE TO OPERATE BEYOND 2 WEEKS OBVIOUSLY BEARS DIRECTLY ON THEIR CONTINUED MILITARY USEFULNESS. INDEED, ANNEX 1A TO THE RFP PROVIDED THAT THE HML WAS TO BE OPERATED FOR EXTENDED PERIODS IN A POST ATTACK ENVIRONMENT AND SHOULD INCORPORATE A DESIGN USING STANDARDIZED, INTERCHANGEABLE PARTS AND SIMPLE MAINTENANCE PROCEDURES. TPLA'S PROPOSAL DID NOT ADDRESS THIS REQUIREMENT.

OUR REVIEW OF THE REMAINDER OF THE AIR FORCE'S CRITICISMS SHOW THEM LIKEWISE TO HAVE SUBSTANTIAL BASES. FOR EXAMPLE, TPLA PROPOSED A WHEELED VEHICLE WITH AIR CUSHION VEHICLE (ACV) CAPABILITY. TPLA, HOWEVER, DID NOT DETAIL PROBLEMS THAT MIGHT BE ENCOUNTERED IN OVERLAND ACV OPERATION AND PROPOSED A DESIGN INCORPORATING LANDING SKIDS THAT COULD OBSTRUCT MOVEMENT OF THE VEHICLE DURING OFF-ROAD OPERATIONS.

AS STATED, OUR OFFICE WILL NOT DISTURB A DETERMINATION OF A COMPETITIVE RANGE UNLESS IT IS SHOWN THAT THE CONTRACTING ACTIVITY ACTED ARBITRARILY. OUR REVIEW OF THE RECORD INDICATES THE EXAMPLES CITED ARE TYPICAL OF THE PROBLEMS THE AIR FORCE ENCOUNTERED IN EVALUATING TPLA'S PROPOSAL. THE RECORD SHOW THAT THE AIR FORCE CONSIDERED TPLA'S PROPOSAL TO BE THE WEAKEST OF THE EIGHT PROPOSALS RECEIVED; IT WAS ONE OF ONLY TWO THAT WERE REJECTED WITHOUT DISCUSSIONS. IN THE CIRCUMSTANCES, WE SEE NO BASIS TO QUESTION THE AIR FORCE'S DETERMINATION THAT TPLA'S PROPOSAL WAS SO WEAK THAT THE PROTESTER HAD NO REALISTIC CHANCE OF RECEIVING AWARD. THE PROTEST IS DENIED.